Ideology, evolution hurdles to rape prosecutions

Page Tools

Value systems must change if more sexual assault victims are to receive justice, writes Patricia Brennan.

It seems the fuss surrounding the saga of the Canterbury Bulldogs is not going to die down after all. As more cases of football "team play" off the field come forward, the penalty, this time, just might go to the girl. Not because the case will proceed, since it probably won't. And not because, even if it did, she'd find justice.

The point is that because of a prolonged airing of the issue, the public might have a chance to understand why it is so difficult for a rape allegation to lead to successful prosecution, and not just when it's footballers who are making the dummy runs.

Among the predictable statements on rape canvassed by the usual line-up of social workers, crime experts and the DPP, the most telling statement made during the debacle was by the detective at the head of the Coffs Harbour taskforce. When the news of charges not being laid was breaking, he said: "The only thing that distinguishes rape from sexual intercourse is the issue of consent."

AdvertisementAdvertisement

So before I take "Fatty" Vautin's advice on last week's Footy Show - that we should put it all behind us and get on with the great game of rugby league - I'm persuaded of the need to add one more opinion, namely a medical opinion.

For a person to be convicted for sexual assault, the prosecution must make a case that proves beyond all reasonable doubt to the jury the following facts: that a sexual assault took place; that it took place between the victim and the person accused; that consent of the victim was absent and that the alleged offender was aware that consent was absent.

It is not surprising then that few cases proceed to conviction. For instance in a typical year in NSW there are 12,000 reported rapes, of which 1200 proceed to court, 600 receive guilty verdicts and 200 jail sentences. Some research suggests that up to 90 per cent of sexual assaults are never reported in the first place. The central problem lies in the expectation that medical examination of a rape victim will resolve the consent issue.

Retrieving DNA from a complainant that identifies the male in question adds no evidence to the question of consent. Also, rapists can use condoms and often don't ejaculate. It comes down to whether there is added evidence of bodily and genital injury that proves beyond reasonable doubt that intercourse was forced.

But herein lies a further problem. Evolution dealt a body blow to the genuine victim of non-consensual sexual intercourse where survival of the species was the mandate. The genitals of the adult female are remarkably resistant to injury and infection.

Given the terror of genital invasion and the threat of imminent violence, it is also a fact that "fright" usually rules out "fight" or "flight" as the victim's adrenaline system kicks in. The resulting passive state can easily be "reconstructed" as receptivity by the offender and result in a complete lack of injury.

The majority of sexual assault victims in the state, even in the metropolitan area health services, are not seen by forensically trained doctors.

Most are examined by well-meaning and overworked doctors who have had little, if any, training in either injury interpretation or forensic medicine. It is therefore surprisingly easy to relate to the statement by a forensic expert (who regularly assists defence barristers in Sydney) when he said that a defence cross-examination of the average untrained doctor attending rape victims is "as easy as taking candy off a baby".

Since sexual intercourse and rape usually take place without witnesses, it leaves the complainant and alleged offender equally with uncorroborated stories. Is it any wonder that cultural belief systems about what constitutes consent to intercourse carry the day with juries in rape cases and are pivotal issues?

The very real suffering of those who have been raped is overlaid by a cultivated culture of "victimhood" as a way of forcing the issue into public awareness. Unfortunately the backlash effect of this in a largely patriarchal legal system is that support services risk dealing in the transference of outrage at injustice rather than accountable evidence and scientific fact.

At the risk of being badly misunderstood as a doctor who has examined more than 700 cases of reported rape, I see a problem in the refusal by some to consider any responsibility of women for sexual behaviour. However minor, this ideology obfuscates the complexity of sexual exchanges between men and women, leaving adolescents particularly prone to rape.

On the other hand the undeniable predominance of men as perpetrators of rape is met with a denial of the seriousness of rape by a male culture which continues to reproduces itself in the high school playground, sports clubs and pubs. The myth of women liking "rough sex" or "crying wolf" when it comes to reported rape holds firm in the public mind and still appears in judicial directions.

Only rigorous, accountable forensic research can hope to answer the hard question surrounding whether genital injury can be used to distinguish consensual from non-consensual intercourse. Medicine often deals in what is minimal diagnostically and owes no less than excellence to rape victims. Legal reforms and special courts could undoubtedly improve the outcomes. But ultimately it comes back to the cultural value systems that shape how sex is negotiated, how bodies are treated and whose testimonies are believed.